R v Rich (Ruling No 30)
[2009] VSC 204
•26 May 2009
| IN THE SUPREME COURT OF VICTORIA | Restricted | |
AT MELBOURNE
No. 1535 of 2007
| THE QUEEN |
| v |
| HUGO ALISTAIR RICH |
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JUDGE: | LASRY J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING | 11 May 2009 | |
DATE OF RULING: | 26 May 2009 | |
CASE MAY BE CITED AS: | R v Rich (Ruling No. 30) | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 204 | |
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CRIMINAL LAW – Application for discharge of the jury – application after prosecutor’s address – reference to evidence which had been the subject of earlier application for discharge – whether high degree of necessity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M. Tinney SC with Mr S. Milesi | Office of Public Prosecutions |
| For the Defendant | Mr J. Desmond with Mr R. Edney | Doogue & O’Brien |
HIS HONOUR:
This is yet a further application on behalf of the accused to discharge the jury. The application was completed on 11 May 2009 and I announced then that the application was refused and that I would publish considered reasons subsequently. I now do so.
On 7 May 2009 during the final address of the prosecutor Mr Tinney SC, counsel on behalf of the accused, Mr Desmond, indicated his intention to make an application for the jury to be discharged. In particular Mr Desmond relied on the fact that during his address, Mr Tinney had referred to a portion of the evidence given by Mr Ryan during Mr Desmond’s cross-examination of him.
The particular portion of Mr Tinney’s address to which Mr Desmond took exception was Mr Tinney’s method of dealing with the argument as to who had arranged to obtain the Fort Knox locker and the reason for it being obtained. On 9 March 2005, the day after the armed robbery and murder at North Blackburn, it is common ground the accused hired a locker at the Fort Knox storage facility in West Melbourne. The significance of the locker is that when it was examined by police executing a warrant in May 2005, items were found which included a receipt for the purchase of a black silk balaclava in January 2005. During his address (at page 4554) Mr Tinney read a portion of Mr Ryan’s evidence in cross-examination to the jury as follows:[1]:
[1]Transcript at 875
QUESTION:….can I suggest a more accurate description as to how it emerged was you had observed that there was an area in Rich's offices on the fourth floor of Little Collins Street where he clearly had a stack of documents that had been there for some time. In other words, there was no - there wasn't a great deal of storage space in the - we've said it was a three-room office set up, and you suggested to him that you were aware of this place Fort Knox where, "It would be a good place where you would have a secure unit and you could have 24-hour access where you could store some of these sort of documents, Hugo, and just get them out of the way"?
ANSWER:No, he was looking for a storage place for other things. I'm not sure if I can go into them. And I've put him on to it and he used that accordingly for that and other purposes.
QUESTION: You just make this stuff up, don't you?
ANSWER: What, am I allowed to go into that or not?
The response from Mr Ryan which included the query as to whether he was allowed to “go into that or not” was relied upon as part of an application for discharge of the jury on 24 February 2009 and on which I published a ruling on 26 February 2009[2]. The basis on which that application was made and the prejudice by way of possible speculation on the part of the jury is dealt with in that ruling.
[2]R v Rich (Ruling No. 25) [2009] VSC 63R
In respect of that passage I said[3]:
At all events, the witness simply said that the accused was looking for a storage place for other things and that the witness was uncertain as to whether he was entitled to describe what they were. In my view, while some level of suspicion might be aroused by that answer if in fact the jury remember it, of itself it is not, in my opinion, of significant consequence.
[3]Ibid at paragraph 19
That remains the case now and it is not made any worse by it being repeated. The jury have been, and will be again, instructed not to speculate or guess about matters which are not the subject of admissible evidence. The fact that it has now been referred to in Mr Tinney’s final address is of no more consequence than at the time and the evidence is relevant to the point that Mr Tinney wished to make. There is nothing in this aspect of the application.
The next passage to which objection is taken for the purpose of this application is at page 4553, when Mr Tinney said:
And not just an individual transaction, by the way, as Mr Ryan tells you. He had been down that laneway, he had been to meet Mr Rich on a number of occasions, hadn't he, as he told you? So to criticise him, and that's the whole purpose of this cross-examination, to criticise him in relation to that level of detail or his inability to provide it is divorced, we say, from reality when you think about it, and sillier still when you reflect upon the very many times that Ryan says he had met Mr Rich on occasions not that dissimilar to that meeting on 1 March.
This passage is referable to the evidence that Mr Ryan gave that on 1 March 2005, which he alleges was the original arranged date for the armed robbery, he went to Mr Rich’s city office to find out why Mr Rich had not appeared at the pre-arranged meeting point at “Gate E” in Footscray Road, West Melbourne. While at the office, Mr Ryan said he was asked by Mr Rich to hand over a 9 millimetre firearm which he did in a laneway behind the office building[4]. Mr Ryan intimated in his evidence that that was not the first time he handed Mr Rich firearms in that vicinity[5]. When Mr Desmond first announced that he wished to make this application he introduced it by saying that the prosecutor had referred to Mr Ryan on other occasions delivering guns[6]. Mr Tinney had not in fact, made such reference.
[4]Transcript at 503
[5]Transcript at 836
[6]Transcript at 4569
Again, the evidence of delivering guns originally arose in the context of a criticism of Mr Ryan by Mr Desmond that he could not remember the detail of the handover of the firearm on 1 March 2005. This was also dealt with in Ruling No. 25.
As to all the matters that were referred to in Ruling No. 25, I concluded that the matters which were subject of complaint were sufficiently vague and non-specific and sufficiently peripheral so that any prejudice created was amenable to judicial direction. The subject matter of the complaints about Mr Tinney’s final address are even more non-specific, presumably deliberately so.
As I have already said, I have directed the jury that they should not speculate about matters which are not before them in evidence. I will repeat that direction in the course of my charge. Having observed the jury now for the duration of this trial over some 62 sitting days, I am very confident they will not do so.
Mr Desmond also raised an issue about a comment I had made during the Basha hearing and Mr Desmond’s cross-examination of Mr Ryan as part of that exercise. In a session after a lunch adjournment Mr Desmond had put to Ryan that the particular incident concerning the handover of a firearm had not been referred to during the morning session. I had expressed a view that that was because he had not been asked directly about it. The passage from Mr Tinney’s address to the jury which dealt with this was in the following terms[7]:
I took the witness to this in re-examination and what you learnt was that he hadn't even been asked about it. He hadn't even been asked about it. So it says something about the extent of the inconsistency. They try to levy an inconsistency out of something that had His Honour remark at the Basha, "I think that's right, Mr Desmond, he wasn't asked about it". It is a small point.
[7]Transcript at pp 4603-3
As best as I could understand the submission of Mr Desmond, he seemed to be suggesting that Mr Tinney’s purpose in referring to my comment as he did was to imply to the jury that I am partisan “..to the Crown’s argument”[8]. There is no valid basis for this submission as part of an application for the jury to be discharged. As to whether the jury might consider I have a predisposition in favour of the Crown, this trial now has a very long record which will no doubt speak for itself.
[8]Transcript at 4632
The final complaint Mr Desmond makes concerns those parts of Mr Tinney’s address in which he dealt with questions asked of Leonard Ryan by Mr Desmond which involved putting positive propositions to him. Mr Desmond did put a number of such questions to Mr Ryan. An example of such a question dealt with during Mr Tinney’s address is in the following terms, commencing with a quotation of the question put by Mr Desmond to Mr Ryan[9]:
"I suggest to you Rich told you back in Little Collins Street when you jumped in the cab we", we, "We got the last car yesterday at Hertz, we couldn't get any at Franklin Street, there were none left at Europcar in Franklin Street", Europcar Hoppers Crossing was known to both of you, so it was decided it would be a short trip in a cab to where there is likely to be a car,” what do you say to that?" The witness: "I say it's ridiculous, because you're forgetting about the other car places we've been to before which are just around the corner from there, Thrifty and Budget and all the other ones." Then this ripper: "But he had an account with Europcar? No, he didn't." What do we know about that answer, "No, he didn't." No, he didn't. It gets better. "For completeness, I'll put to you there's no exchange of vehicles because you'd gone out there in a cab and Rich has left with the cab and you've got the hire vehicle, you deny that of course? --- Yes". You see, this isn't Mr Ryan creating some crazy detail, it's not me creating some madness, it is not the informant or Mr Iddles. This is being put before you as the event that took place on 8 March.”
[9]Transcript at pp 4585-6
The complaint that Mr Desmond makes is that this in an attempt to convey to the jury that the accused did not go into evidence and call witnesses. The jury know that the accused did not do that. It defies reality to suggest that the jury do not realise that such an option was open to him particularly given that on numerous occasions Mr Desmond put positive propositions to witnesses which gave the very clear impression that evidence would be called.
In addition to that aspect, Mr Desmond complained that Mr Tinney referred to questions asked of Mr Ryan by Mr Desmond about statements said to have been made by Mr Ryan to, for example one Chimeri, which seemed to exculpate Mr Rich[10]. Mr Tinney referred to these with a level of derision[11] but the complaint Mr Desmond makes is that Mr Tinney was transmitting a message to the jury that if these conversations occurred, the witnesses could have been called and they were not. That, he submits, is impermissible.
[10]See for example transcript at page 1438-9.
[11]See at page 4605
In my view Mr Tinney was doing no more than reminding the jury of how Mr Ryan was tested in cross-examination and what could be made of such questioning when the jury come to assess his credibility and reliability as they will have to do. The purpose of going to such material was certainly to criticise the questioning and to emphasise the emphatic nature of the answers. This questioning is all before the jury and it is material on which the defence sought to impugn Mr Ryan’s evidence. Such an approach was legitimate but the Crown can not be shut out from dealing with it and in my view have not done so inappropriately.
Finally, and his submissions by way of reply, Mr Desmond complained about the following passage of Mr Tinney’s address[12]:
Can I turn to Lenny Ryan. I'm sure there are many of you who have got young kids or teenagers, or even if you haven't you might have seen the movie Pirates of the Caribbean. There are characters in that, Captain Barbosa, I think, Mr Gibbs, Jack Sparrow, and they may mean nothing to you these names, but there is a pirate code, "Keep to the code", they keep saying, "Keep to the code". Mr Ryan tells you of the code, the code that you don't tell. He told you of the code that he had breached. He told you of the consequences. We have called a number of people who have not kept to the code. One of those is Ryan obviously. Hogan probably not in this sense, you know he had no history at all with the police and another who regrets, even as he comes before you, not keeping to it. This is James. Even as he comes before you, you learn that he has provided off to Mr Desmond in the course of the Basha hearing a list of questions that he should be asked to explain why it is that he isn't keeping to the code.
[12]Transcript at page 4540
As best I can understand the complaint it pertains to the use of the word “code”. There has been a significant amount of evidence given by Mr Ryan and Mr James about the consequences of giving evidence as a prosecution witness. Much of that evidence has occurred in the course of cross-examination by Mr Desmond and as I pointed out to him the more pejorative and traitorous label “dog” has been discussed in the evidence. With all due respect, in that context, this passage was both tame and a fair comment on the evidence.
For those reasons I refused the application.
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